United States v. Carrillo, Reyes

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 14, 2006
Decided December 21, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-2195
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 02 CR 729-1
REYES CARRILLO,
Defendant-Appellant. David H. Coar,
Judge.
ORDER
Reyes Carrillo was convicted of conspiracy, drug trafficking and attempted
possession of cocaine and heroin with intent to distribute and was sentenced to 372
months’ imprisonment. United States v. Carrillo, 435 F.3d 767 (7th Cir. 2006). On
appeal, we ordered a limited remand in light of our decision in United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005). Carrillo, 435 F.3d at 785. The district court
has responded that he would have imposed the same sentence in this case had the
Guidelines been advisory instead of mandatory. Carrillo argues that his case should
be remanded for resentencing.
The district court’s response that he would have imposed the same sentence
means that “there was no prejudice arising from the Booker error, and we review
[Carrillo’s] sentence for reasonableness.” United States v. Melendez, 467 F.3d 606, 607
(7th Cir. 2006) (citing United States v. Re, 419 F.3d 582, 583 (7th Cir. 2005)). Carrillo’s
No. 04-2195 Page 2
sentence of 372 months’ imprisonment is within the Guidelines range and therefore is
entitled to a rebuttable presumption of reasonableness. See United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). The district court’s response demonstrates that the
district court properly considered the 18 U.S.C. § 3553(a) sentencing factors. See
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (“Judges need not rehearse on
the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to
calculate and explain why ... this defendant deserves more or less.”)
Carrillo’s arguments for resentencing are unavailing. First, he argues that this
court’s decision in Mykytiuk conflicts with the Supreme Court’s decision in Booker.
However, “[t]o say that a sentence within the [Guidelines] range presumptively is
reasonable is not to say that district court judges ought to impose sentences within the
range. It is only to say that, if the district judge does use the Guidelines, then the
sentence is unlikely to be problematic.” United States v. Gama-Gonzalez, – F.3d –, No.
06-1965, 2006 WL 3490843, at *1 (7th Cir. Dec. 5, 2006) (citing United States v.
DeMaree, 459 F.3d 791, 794-95 (7th Cir. 2006) (emphasis in original)). Second, Carrillo
argues that the district court’s factual findings under the preponderance of the
evidence standard cannot be relied upon and instead only the beyond the reasonable
doubt standard should have been used. However, post-Booker district courts properly
continue to make factual determinations under the preponderance standard as long as
these determinations do not increase the statutory maximum sentence. See United
States v. Garcia, 439 F.3d 363, 369 (7th Cir. 2006). Finally, Carrillo argues that he
should have received the statutory minimum sentence of 120 months’ imprisonment.
However, the district court determined that Carrillo was “found to be the head of a
large system for distributing narcotics,” (R. at 294 pg. 6), and therefore a sentence of
372 months’ imprisonment is reasonable.
The judgment of the district court is AFFIRMED.